The Law of the Land

In a thinly disguised effort to minimize political damage from growing disillusion with the vortiginous war in Iraq, the Bush administration has begun to “scale back” its predictions of what is actually achievable under the U.S. occupation. Put on a pair of sunglasses and grab onto your seat: U.S. officials are now saying they “no longer expect to see a model new democracy, a self-supporting oil industry, or a society in which the majority of people are free from serious security or economic challenges” (Washington Post, 8/14/05 http://www.washingtonpost.com/wp-dyn/content/article/2005/08/13/AR2005081300853.html). They might have included a functioning health care system, the widespread availability of potable water, and a rehabilitated electrical grid, since these seem equally “unrealistic” under foreign occupation. Still, we should commend them for their forthrightness, and acknowledge that perhaps they are withholding these other admissions for future revisionings.

Had U.S. officials been sleeping better lately and had the moon been in a different house, they might have similarly revised the domestic forecast, admitting that a free society in the US isn’t any more likely in the foreseeable future. In this case, by a “free society” I mean one which is fired by renewable sources of energy, demonstrably committed to civil liberties, including the right to dissent, and disentangled from the global web of violence woven by trade in arms and strengthened by war. Fresh and convincing evidence that we are in fact moving away from such a society came to us on Friday, August 12th, when Federal Judge John Bates ruled in the U.S. Treasury Department’s case against Voices in the Wilderness (VitW), the Chicago-based campaign to end the war and sanctions against Iraq. Ruling in favor of the plaintiff, Judge Bates upheld the Treasury Department’s $20,000 fine against VitW, a fine imposed for transporting “medicine and toys” to Iraq “absent specific license or other authorization” (DOT letter to VitW, 11/04/02 (http://vitw.org/archives/576).

We now live in a society where the law of the land asserts that delivering aspirin and antibiotics to a pediatrics ward where children are dying from diarrhea is a criminal offense. Likewise handing a plastic harmonica to a child suffering from leukemia. And there are federal judges who will bring the gavel down and sign on the dotted line.

The Office of Foreign Assets Control (OFAC) is the quaint locale at the US DOT seized with responsibility for enforcing compliance with U.S. sanctions laws. Never heard of OFAC? According to its Director, Richard Newcomb, OFAC’s “primary mission is administering and enforcing economic sanctions against targeted foreign countries, and groups and individuals, including terrorists and terrorist organizations and narcotic traffickers, which pose a threat to the national security, foreign policy or economy of the United Statesâ€¦OFAC currently administers and enforces 27 economic sanctions programs” (Senate hearing statement, 4/29/04). Though one may wonder how the collection of medicine and toys and their delivery to needy hospitals and clinics in Iraq constitutes a “threat” to U.S. “national security,” it’s not so farfetched that these actions were considered a “threat” to U.S. “foreign policy” in Iraq.

From its inception, Voices in the Wilderness has had a rocky relationship with OFAC. On January 15, 1996, in a letter to then-U.S. District Attorney Janet Reno, VitW founders announced their intention to bring medical supplies to Iraq in opposition to the economic embargo and its cruel consequences. “We the undersigned intend to deliberately violate the UN/US sanctions against the people of Iraqâ€¦We can no longer be party to this slaughter in the desert.” They went on to invite Ms. Reno in her “capacity as guardian of justice in the United States, and in [her] concern for children who are the primary victims of the embargo, to join us in demanding that the U.S. government lift this embargo, which in its real effects is immoral and unjust” (http://vitw.org/archives/364#Reno).

Janet Reno never responded to the letter, and to my knowledge never accepted the invitation to oppose the embargo, but a week later, on January 22, VitW received a letter by fax from OFAC. OFAC enforces laws promulgated under the International Emergency Economic Powers Act, which asserts, in part: “It is the policy of the United States, that upon the use of the Armed Forces of the United States to engage in hostilities against any foreign country, the President shall, as appropriate – (1) seek the establishment of a multinational economic embargo against such country; and (2) seek the seizure of its foreign financial assets” (Chapter 50, Title 35, Section 1707 http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001707—-000-.html). Executive Order 12722, signed by George H.W. Bush on August 2, 1990, did just that, and on January 18, 1991, the day after U.S. forces launched the Gulf War, OFAC published the Iraqi Sanctions Regulations, which detailed and codified the entire package of prohibitions with regard to Iraq, the required licensing process for exceptions, and the penalties for violations.

OFAC’s January 22nd letter to VitW articulated the pertinent details of the Iraqi Sanctions Regulations: namely, the prohibition on “travel” and on exports of “goods, services, or technology to Iraq.” Exceptions, it noted, were allowed on a case by cases basis for “donated medical supplies,” approved and licensed in advance. Noting it had no application on file, OFAC warned VitW to “refrain from engaging in any unauthorized transactions related to the exportation of medical supplies and travel to Iraq.” As an incentive for such compliance and to be perfectly clear and upfront, it stipulated the “Criminal penalties for violating the Regulations range up to 12 years in prison and $1 million in fines. Civil penalties of up to $250,000 per violation may be imposed administratively by OFAC.”

If this “warning” was intended to unplug VitW, it failed. Between 1996 and March, 2003, VitW organized over seventy separate delegations to Iraq, each one violating the sanctions. In sum, this was an attempt to organize actions commensurate with the suffering in Iraq. It fell far short, of course, but each delegation did witness and document conditions on the ground in Iraq, exporting out of the country reports, stories, photos, art, music, and other representations of the consequences of war and sanctions. It sought, on the one hand, to build bridges with ordinary Iraqis, and on the other to help build the case against the execrable sanctions.

On December 3, 1998, OFAC sent VitW a “Pre-Penalty” notice, specifying the dates and violations of the Iraqi Sanctions Regulations, and proposing a penalty of $120,000. The case then fell into a coma for nearly four years, until, during the turbulent run-up to the invasion of Iraq, OFAC imposed an actual penalty against VitW on November 4, 2002, reducing the fine to $20,000 because it was concerned about a statute of limitations defense against several 1996 travel violations. Nine days earlier, VitW had played a prominent role in organizing the nationwide protests against the build-up to war. Members of VitW interpreted the sudden awakening of the case as an attempt to stifle dissent.

In its response to OFAC, VitW stated “We don’t have to ask our government’s permission to visit and care for the sick, no matter where they live, any more than women have to ask permission of men for the right to vote, or African Americans have to ask permission of Whites for equal protection under the law.” As in its previous correspondence, VitW noted relevant reports of widespread suffering and death due to economic sanctions, and attached documents elaborating relevant international law defining and prohibiting genocide and mass punishment. VitW also included, “as payment of the fine,” 6,750 Iraqi dinars, contraband from various trips to Iraq, the rough equivalent of $20,000 US valued at pre-sanctions exchange rates, but worth only $3.33 at the time.

None of this made an impression on the OFAC dray horse, which, bit in mouth and blindered, pulled blandly in line with the letter of the law. A reading of the OFAC documents (the quicker the better) is a sure solution for insomnia. The court case, as directed by Judge Bates, was no more enlightening. International law and the effects of the sanctions on ordinary Iraqis were barred from the proceedings. Bates essentially boxed himself in, and his verdict upholding the $20,000 penalty comes as no surprise: “â€¦the record demonstrates that the defendant is being fined not for its views, but for the willful and knowing violation of statutes, executive orders and regulations enacted by elected political representatives” (Ruling, 8/12/05).

Perhaps most interesting in Bates’ decision is a reference, in the last paragraph of his 16-page ruling, to Martin Luther King, Jr.: “The same system of laws that protects Voices’ right to peacefully protest government policies and petition for their change also demands that Voices submit to the penalties that attach under law when it chooses to violate those policies. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. Rev. Martin Luther King, Letter from Birmingham Jail (Apr. 16, 1963). Because Voices has presented no credible evidence that OFAC’s civil enforcement action was anything other than lawful, it must bear the burden of the monetary fine as a cost of protesting administration and U.N. policies in the manner it chose to employ.”

Bates is clearly scolding here, summoning Martin Luther King to assert that VitW go docilely to the slaughterhouse. But King was commending a spirit of action – one that should infuse civil disobedience – not a spirit of compliance. As Kathy Kelly, co-founder of VitW, put it when she read Bates’ opinion, “Hmmm. Hard to imagine that if King had been fined in Birmingham instead of jailed, he would have said, ‘OK’ and written a check. If Judge Bates decides to send one or more of us to jail, I feel almost certain we will go openly and lovingly. But we won’t turn over one dime to help these war criminals in their attacks against Iraq or their imperial seizure of Iraqi oil assets.”

At a time when sanity – to say nothing of moral leadership – is absent from the political stage, Bates had an opportunity to condemn a law which contributed to suffering and death on a massive scale in Iraq and for over twelve years prohibited US citizens from responding to that crisis. He could have ruled on the basis of international law, which rightly prohibits mass punishment and genocide. Such a ruling would not only have set a delicious precedent, it would have been a direct legal challenge to US imperialist policies. Instead, Bates defined himself as one more tooth in the grinding mouth of U.S. militarism. His words ring out, for anyone who is listening, as another knock against civil liberties in the U.S., and a clear nod to current energy policies and the reign of imperialism in U.S. foreign policy.